Majority find against restrictive laws but throw the case out on a technicality

A deeply divided Supreme Court has found that Northern Ireland’s abortion ban is in breach of human rights laws and needs “radical reconsideration”.

The explosive judgment will add to the political row over the issue but has no legal effect, as the challenge to the abortion regime was actually dismissed for lack of “standing”. The justices voted 4-3 that they had no jurisdiction to do anything about the human rights breach.

Abortion is a crime in Northern Ireland except in very limited circumstances to save the life of the mother. The Northern Irish human rights commission challenged this as a breach of the European Convention on Human Rights in cases of rape, incest or fatal foetal abnormality.

The seven justices were divided in a dizzying variety of ways on the different issues in their 144-page judgment. But the bottom line is that a majority found that not allowing abortion in these extreme circumstances was a breach of Article 8 of the human rights convention.

Lady Hale, Lord Mance, Lord Kerr, Lord Wilson and Lady Black all found that women should be allowed to terminate a pregnancy where the foetus is doomed anyway. Smaller majorities said the same in cases of pregnancy caused by rape or incest.

But there was a twist.

Four of the seven judges decided that the case had to be rejected on what campaigners will see as a technicality. The human rights commission had no standing to take the case in the first place. Lord Mance wrote that “the present proceedings were not instituted by identifying any unlawful act or any actual or potential victim of it”.

The Northern Ireland Act did not give the commission the power of “instituting or intervening in proceedings where the only complaint is that primary legislation, such as the 1861 Act, is incompatible with the Convention Rights”.

Mance, in one of his last acts before retirement from the court, nevertheless agreed that “the present law clearly needs radical reconsideration”

Lord Kerr, himself from Northern Ireland, paid tribute to the “courage” of women who submitted evidence about their own doomed pregnancies, writing that they were “condemned, because legislation enacted in another era has decreed it, to endure untold suffering and desolation. What is that, if it is not humiliation and debasement?”.

In a sign that judicial tempers were frayed over the case, Kerr accused the majority who threw the case out for lack of standing of “depart[ing] from a well-established line of authority”.

And in a not-so-subtle hint to politicians, Kerr said that the majority findings were, although non-binding, “worthy of close consideration by those in whose power it lies to decide whether the law should be altered”.

Although the decision is technically a setback for the campaign to make abortion more widely available in Northern Ireland, it achieves many of the same things as a victory. If not for the technicality, the Supreme Court would have issued a “declaration of incompatibility” inviting parliament to change the law. The majority findings have effectively laid down the same gauntlet.

A clearly unhappy Lady Hale warned that the decision on standing “does not mean” that the majority decision on human rights “can safely be ignored”.

There were only 13 legal abortions in Northern Ireland in 2016, but over 700 women travelled to Great Britain for one. It is perfectly legal to travel to other parts of the UK for terminations, and since last year the procedure has been available free on the NHS for Northern Irish women, following a campaign led by Labour MP Stella Creasy.

But campaigners want easier access to abortion at home. Concern for the wellbeing of women forced to travel to Britain was a key reason that the Republic of Ireland voted last month to relax its similarly restrictive laws on abortion — with pressure now on Northern Ireland to follow suit.

MPs debated the issue on 5 June, with Heidi Allen winning praise for recounting her own experience of having a termination.

Conservative Heidi Allen on abortion : "Because I have been there, I am making it my business… I was ill when I made the incredibly hard decision to have a termination. I was having seizures… I couldn't control my own body let alone care for a new life"

Others oppose change. Jeffrey Donaldson of the Democratic Unionist Party (DUP), the largest political party in Northern Ireland, insists that 100,000 people whose lives would otherwise have been terminated are alive today because of the province’s restrictive laws. Another DUP politician has likened abortion to Nazi gas chambers.

The DUP are not alone in their opposition to abortion: the Northern Ireland Assembly voted in February 2016 against changes to the law. By contrast, a 2016 opinion poll cited in today’s decision found that a large majority of voters would support abortion in cases of rape, incest or fatal foetal abnormality.

Always remember this about Northern Ireland: the people are usually ahead of the politicians.

34 Comments

Anonymous

Jun 7 2018 11:44am

This is clearly a matter for politicians not the Courts and it is also a devolved matter. We may not agree with the DUP stance on this but they are the largest party in Northern Ireland and by extension represent the biggest amount of support of any party in the region.

(13)(6)

NVM

Jun 7 2018 11:52am

This is also about the Convention on Human Rights, to which the UK including NI is a signatory to. The court, in my opinion, should have used the purposive rather than literall approach in interpreting the 1945 legislaiton and ruling on standing.

(6)(6)

Not Amused

Jun 7 2018 12:24pm

Because you want to achieve via the courts what you cannot achieve via the ballot box.

There’s a word for that – and it’s not a concept that belongs in our democracy.

(17)(4)

Anonymous

Jun 7 2018 3:42pm

How is it democracy where no Assembly has sat in NI for over a year? The absence of a democratically elected legislature means that someone has to step in and govern in the interests of the people.

(4)(4)

Amrit Lohia

Jun 7 2018 4:03pm

In effect you seem to be advocating for an elected dictatorship, in which whatever the people vote for is automatically treated as the last word. But there’s a reason why we don’t have such a purely democratic system: some values are so fundamental to civilised nations which have the rule of law that they are taken off the table and cannot be challenged, regardless of what the mob might say or think. Hopefully, for example, you would agree that even though Parliament voted (by passing the ATCSA 2001) to allow indefinite detention without trial, the House of Lords were right to reject it as anathema to the rule of law, the right to liberty, and the ECHR. This idea that certain rights are so fundamental that they must have primacy over the will of the people and of the legislature, or in other words, “fundamental human rights”, was one of the key principles established by the 1945 UN Charter, and so as you clearly disagree with that, you should (by your own reasoning) be the one campaigning at the UN for states to vote to eliminate fundamental human rights.

(3)(6)

Just Anonymous

Jun 7 2018 4:24pm

“some values are so fundamental to civilised nations which have the rule of law that they are taken off the table and cannot be challenged, regardless of what the mob might say or think.”

And what happens when we disagree about these values, or the application of them.

With regard to abortion, some would argue that the right to life is fundamental, and so the foetus can never be ‘killed’, no matter the wishes of the mother. Others would argue that the right to self-determination is fundamental, and so the mother’s wishes should prevail.

How should we resolve this? By a democratic legislative process? Or by a binding judgment delivered by unelected judges, Roe v Wade style?

I prefer the democratic process. I prefer it for the reasons given by Lord Neuberger in a speech given about seven years ago and publicly accessibly here:

“Placing such decisions in the hands of the judicial branch of the state poses a danger for the judiciary and for liberal democracy, because it removes the debate from the public and their elected representatives.”

(16)(1)

Trumpenkrieg

Jun 7 2018 5:16pm

“some values are so fundamental to civilised nations which have the rule of law that they are taken off the table and cannot be challenged, regardless of what the mob might say or think”

Killing babies is a fundamental value. You heard it here first.

(6)(3)

Trumpenkrieg

Jun 7 2018 6:00pm

The problem with this argument is that you start with “freedom from indefinite detention is a fundamental right” and, via “abortion is a fundamental right” come to “intergenerational sex is a fundamental right” and “deciding you are trans at 3 years of age and your parents should lose custody of you if they oppose your wishes fundamental right”.

(5)(2)

Anonymous

Jun 7 2018 6:02pm

“So what you are saying is …”

This is a highly manipulative style of argument which grossly distorts the position of an opponent as a way of ridiculing them and shutting down debate. It is wrong. It is endemic in the centre left. It needs to stop.

Abortion laws are a devolved matter. That is it. We cannot impose our views on NI. Doing so would be extremely wrong and a far greater risk to peace than some customs checks at the border.

(2)(0)

Cathy

Jun 8 2018 2:53pm

So what you’re saying is, we should debate like lobsters?

(6)(0)

DCI

Jun 7 2018 12:34pm

You’re wrong. Some places like Ballymena get to elect three MLAs where as somewhere the same size like Downpatrick only gets to elect one. Sinn Fein gained more seats and the unionist majority is no longer the case. The DUP Jim wells said yesterday and I quote “abortion is worse than the Holocaust.” Comparing Nazis to women having abortion. LucidTalk held a poll two years ago on people’s views in NI on abortion, 66% voted in favour of abortion being legalised. And I am sure that amount has increased since then. Whether it’s a devolved matter, The house of commons supersedes laws in Scotland, Wales and Northern Ireland whether they are devolved or not. DUP are dinosaur deniers, homophobic haters, anti Catholic bigots. You don’t know what you’re talking about! Now for the first time DUP have lost control on the petition of concern. Won’t be long until a border poll is called and Ireland is reunited!

(8)(1)

Anonymous

Jun 11 2018 11:27am

What about the human rights of the unborn baby?

“Human Rights” as espoused by this court and the elite are not neutral but political.

To say that a serial murderer has a right to life but an unborn baby doesn’t just goes to show what a twisted society we have become.

(1)(2)

Just Anonymous

Jun 7 2018 11:56am

I agree that abortion should be legal in these circumstances.

However, I also think that a population is entitled to decide that a foetus has the same moral standing as a human being and deserves the same protections accordingly.

I don’t agree with that view but I support the right to honestly hold it.

If a majority in Northern Ireland no longer hold this view, then the law should be changed.

However, if a majority support the status quo, then it is not for Westminster or (indirectly) the courts to overrule them.

(22)(0)

Anonymous

Jun 7 2018 12:05pm

Not a huge fan of using the word “doomed” to relate to a non-viable foetus…

(2)(1)

Anonymous

Jun 7 2018 12:14pm

Aren’t we all doomed to die eventually?

(3)(1)

Anonymous

Jun 8 2018 2:12am

I am most certainly doomed to die, but until I do, I will use every fibre of my being to resist!

(1)(1)

Anonymous

Jun 7 2018 12:34pm

Conor

GIRFUY

(2)(0)

CITY PARTNER

Jun 7 2018 12:38pm

I thought we own Northern Ireland?

(4)(4)

Anonymous

Jun 7 2018 12:46pm

We pay for it, but I’m not sure that’s the same thing

(8)(2)

Anonymous

Jun 7 2018 1:02pm

If I ever owned slaves I wouldn’t want drunk ones.

(1)(3)

LC staff

Jun 8 2018 2:13am

Damn and we was hoping 😫

(1)(1)

Anonymous

Jun 7 2018 1:50pm

Didn’t the Registrar do a brilliant job appointing those seven judges.

A close shave but a job well done at 4 – 3 to the status quo !

(2)(0)

Anonymous

Jun 7 2018 5:37pm

It’s life. Not merely a foetus. Murder I say!

(2)(2)

Corbyn. Sympathiser

Jun 7 2018 9:44pm

That Trumpenkrieg is a Nazi.

(2)(3)

Anonymous

Jun 7 2018 10:14pm

Westminster should stay out of it yo

devolution.

(1)(0)

Anonymous

Jun 8 2018 12:26am

If ever there was a time for an exercise in ‘creative’ judicial discretion that was it. The ‘will of the people’ should not reign supreme over basic human decency. In fact it doesn’t look like the will of the people is even being represented if Legal Cheek has cited the polls correctly.

It is unacceptable not to provide at least basic abortion services. It’s time for the supreme court to go postal and usher in strong common law constitutionalism. Then go on a merry spree of striking down whatever legisation that takes their fancy…

Fine, my dream of an omnipotent Judiciary (with myself as CJ) with power to strike down legisation, the right to have detained any person who urks the CJ and free foot massages to all stressed advocates in courts might be far off. However I am sure their Lordships could have found a tenious way of issuing one measley, paltury, piddling, trivial section 4 declaration. Was it really to much to ask?

What happened to the bold first steps of a new era of judicial willingness to intervene to prevent grave breaches of fundermental rights: R(Jackson) v AG [2006], Ex Parte Simms [1999] etc…?

I give the court a grade D. They got the law right but failed to apply it properly (the only correct approach was to strech it to breaking point).

(1)(3)

Anonymous

Jun 8 2018 10:45am

All you want is judicial activism. When the courts start doing that, they cease to be fair

(2)(0)

Anonymous

Jun 8 2018 6:02pm

Did you not read my 12am half asleep rant word for word!!!!? I will be the CJ so I can send everybody else to prison. Not the other way round. # masterplan

(0)(0)

Anonymous

Jun 8 2018 6:36pm

I am a judge, it’s there in my name

(1)(0)

Anonymous

Jun 8 2018 10:46am

Since when is killing babies a fundamental human right?

(5)(1)

Ciaran Goggins

Jun 8 2018 10:52am

About the one thing loyalist and nationalist politicians agree on is keeping the abortion ban. We don’t want any of your “subconscious phallocentric oppression of wimmin” TERF spooge here.

(1)(1)

Anonymous

Jun 11 2018 6:48am

I’m absolutely not a Christian – arguably Christianity, especially in its recent manifestations, has done a lot of damage to the West – but there’s sure as hell something sick about seeing the killing of an unborn child as a “human right”.

(2)(1)

Anonymous

Jun 11 2018 2:04pm

Funny how health professionals refer to “your baby” when dealing with the pregnant mother of a wanted unborn child, but it’s just “the foetus” when unwanted

Perhaps “the foetus” should be given the opportunity to self identify as “unborn child”?